Hillary wants to hold gunmakers liable

Forty-three states have dram shop laws — though round-the-clock, free-booze-for-gamblers Nevada, of course, isn’t one of them.

I know of no state that holds Jack Daniels and its ilk of manufacturers liable when someone overimbibes and causes harm to another.

Hillary Clinton seems to want to hold gunmakers liable for when purchasers misuse their product, going after Bernie Sanders in Saturday’s debate in Michigan for backing a 2005 law that provides broad civil immunity for gun manufacturers and dealers so long as they do not willfully or negligently misbehave or create a defective product.

It is one thing for a bartender to refuse to serve an obvious drunk, but how do gun dealers — much less gunmakers — spot a kill-crazy psychopath?

Clinton pronounced that she believes “giving immunity to gunmakers and sellers was a terrible mistake …”

She declared, “Because it removed any accountability (ignoring the exceptions for willful and negligent) from the makers and the sellers. And it also disrupted what was a very promising legal theory, to try to get makers to do more to make guns safer for example. To try to give sellers more accountability for selling guns when they shouldn’t have. So that is an issue that Senator Sanders and I differ on, I voted against giving them immunity, but I think we should very seriously move to repeal that and go back to making sure gun makers and sellers are like any other business. They can be held accountable.”

Watch out who you sell those hammers and machetes and nail guns to, Home Depot, Hillary thinks you and the makers of those things are liable right now.

Sanders correctly pointed out that Clinton’s proposition would end gun manufacturing in the United States, and presumably gun dealerships, though Sanders did not say it

“If you go to a gun store and you legally purchase a gun, and then, three days later, if you go out and start killing people, is the point of this lawsuit to hold the gun shop owner or the manufacturer of that gun liable?” Sanders asked.

“If that is the point, I have to tell you I disagree. I disagree because you hold people — in terms of this liability thing, where you hold manufacturers’ liability is if they understand that they’re selling guns into an area that — it’s getting into the hands of criminals, of course they should be held liable.

“But if they are selling a product to a person who buys it legally, what you’re really talking about is ending gun manufacturing in America. I don’t agree with that.”

This was followed by quibbling and hemming and hawing and cross talk.

The moderator kept trying to change the subject, but Clinton insisted, turning it into a Sanders-like argument against corporate greed.

“I want people in this audience to think about what it must feel like to send off your first grader, little backpack, maybe, on his or her back, and then the next thing you hear is that somebody has come to that school using an automatic weapon, an AR-15, and murdered those children,” Clinton meandered.

“Now, they are trying to prevent that from happening to any other family.”

With Sanders and the moderator trying to interject, she charged. “… you talk about corporate greed?

Sanders: “Hold it.”

Clinton: “The gun manufacturers sell guns to make as much money as they can make.” This from the woman makes hundreds of thousands of dollars giving 30-minute speeches to Wall Street firms that she refuses to release to the public.

When Sanders got to talk he repeated his observation about the consequences of what Clinton is asking for: “But it, as I understand it, Anderson (Cooper), and maybe I’m wrong, what you’re really talking about is people saying let’s end gun manufacturing in America. That’s the implications of that, and I don’t agree with that.”

Just as making the manufacturers of alcohol liable would end all distilling, brewing and wine making.

When everyone is responsible for everything that goes awry, no one is responsible.

She is evil. She is lying about repealing that law because she hopes to con idiots into voting for her based on another hollow promise.
Moreover, Sanders is right, her lie (if enacted) would end gun manufacturing in this country and possibly imports as well if it held importers to the same requirement.

Evil and a bitch…for lying to your face and smiling while doing so, Nyp.

Someone explain to me why the law was needed in the first place. Shouldn’t gun manufacturers be subject to the same laws as the rest of us? If they want to change the law, change it for everybody, not just the gun manufacturers.

Cackle: to chatter noisily, prattle. I find her voice quality very annoying when she begins to raise it as she pontificates as in the clip above…it’s difficult to listen to. I can’t watch President Obama speak very long because of his “whistling S’s”…I find that very annoying also. And just to be fair…Donald Trump’s half sentences and broken thoughts drive me crazy also, while Mitch McConnell’s wobbling turkey jowls are equally maddening! Now back to the kernel of the clip above…as stated above the Bushmaster AR-15 is a semi-automatic rifle…there were NO automatic weapons used by the mentally deranged Adam Lanza at Sandy Hook. I don’t know anyone who wasn’t repulsed by this horrific act. But to cackle about going after Remington…with nary a word about the mental illness that permeates a large majority of these mass killings is infuriating. And the fact that this cowardly killer assassinated his own mother before heading out to the “gun free” zone of Sandy Hook, along with his deep obsession with the Columbine shootings is indicative of how really sick he was. Bernie was courageous to stand up against Hillary’s ridiculous rant.

Of course GM shouldn’t be liable. My question is, before the 2005 Protection of Lawful Commerce in Arms Act, under what tenet of law could a gun manufacturer be held liable for a shooting? The only reasoning I can see is if a manufacturer was negligent in checking out his customers, sort of like a liquor store being sued by the family of the victim of an under age drunk driver who was sold alcohol. The other possibility is that suits were brought with no real legal basis, otherwise known as frivolous lawsuits. Those should be struck down no matter who is being sued. Why doesn’t existing case law protect gun manufacturers?

Imagine (and you don’t really have to imagine it because it happens) a gun manufacturer that makes a gun that it knows, as a certainty, is being bought, then immediately adapted to be used as an automatic. Imagine that the “fix” is a part that costs pennies per gun, but because the gun manufacturer knows that by fixing the weapon, their sales would plummet for that particular gun.

The gun manufacture has also been sued, repeatedly, by people killed when the weapon they sell is adapted in this fashion, by people who’s children, husbands, sons and daughters have been killed in mass shootings where, if the gun were NOT so adapted, those killings would have been impossible.

They knew the gun was being “misused” for a “purpose that they didn’t intend”, and although the fix was pennies, they made an intentional decision to continue selling the gun because to do the “fix” would have decreased their profits, and the “known” misuse of the weapon, led to many, many deaths.

They are (or should I say) they were liable, as any other manufacturer of a product is when the “misuse” is “foreseeable” and the “fix” cost is negligible, and the reason for continuing without the fix is for profit, and the consequences are HUGE, on balance.

That WAS the law, and is the law for everyone (see the latest damage award against “TEVA” the maker of “Propofol”) but, for some reason, that got changed for guns.

Added to Patrick’s real life example (yes Patrick is correct in this.) It’s like the ignition switch problem in those GM vehicles that would have cost less then a penny to fix in production.

Moreover it is like lawsuits against tobacco companies. They also knowingly sold a deadly product while insisting it was perfectly safe.

The difference is a weapon is designed to kill things, unlike the car. And both need to be used with respect and care. This makes for another difference, we have strong reason to trust that cars are safe if used as intended. What we CANNOT predict are the actions of people who intend to use them in an unsafe manner.
For instance, driving a car on the wrong side of a freeway is not the fault of the manufacturer, any more than modifying a gun is the fault of a manufacturer. How do we stop people from sawing off a shotgun? That mod has nothing to do with a simple change in manufacturing. Yet Joe Biden swears by shotguns.

Can’t blame them for going after, and getting, protections they strongly felt they needed.

“Why is the hotel where Fox Sports reporter Erin Andrews was videotaped in the nude being required to pay pay half the $55 million judgment?”

My point exactly. So we want to exempt gun manufacturers, but not hotels – or anybody else for that matter? If we want to make some special group immune to lawsuits, why not start with doctors? The real answer, of course, is true legal reform, but our plutocracy won’t allow it, even if the voters were on board. The lawyers pay too much money to Liberals to have that happen.

Rincon the “plutocracy”, as you call them are indeed attempting to change the laws to protect special interests from being held responsible for their actions. Every day a new monied interest is sending their Lobbiests to the halls of power to get them to change the laws in this country to ensure that a new (wealthy) special interest is protected from their actions. Doctors, gun makers, nuclear power plants, drug makers, seed companies (who are we kidding it’s Monsanto) tobacco companies, and many others, get “special treatment” under the law that prevents the little people, (I like to call them people) from being able to sue, and recover, for the damages these special groups cause.

These wealthy companies, and their sycophants tell us stories like “if we don’t minimize the awards against these people that result from their negligence (or worse) they am actually have to stop dong what they’re doing”. Strangely enough, out of the other side of their mouths, while their telling people this, they are also purportedly AGAINST “big government” interference in “the marketplace”. And even though new laws, and new regulations are necessary to implement the changes they advocate, this doesn’t seem to bother them. And even though these are the same people who will PREACH that the reason government should NOT be interfering in the marketplace is that the COURTS ought to be a persons remedy when a company commits a negligent act against someone, they are taking actions that FORECLOSE the Courts, as a remedy for those people who have been wronged.

Tort reform? What is tort reform after all other than “the government” passing a new law, telling the market, that a negligent actor, is no longer responsible for the costs of their negligence? How do the “libertarians” in the world, look themselves, in the face, and support such an outcome I wonder? How does a republican, who pretends at supporting a free market argue that a company ought to be able, through government interference, to reduce their costs, and this place itself outside the competition that supposedly ensures the most efficient delivery of the best and cheapest goods?

Course, the most important part of tort reform is making sure that when a person has been damaged, by the negligent actions of another, that they are unable to secure an advocate for them. How do the tort reformers do this? Well, they just pass another law that precludes attorneys from getting paid what the “free market” would allow. Thus making it difficult, or even impossible, for the injured person to obtain adequate representation, all the while the bad actor, and their insurance company, are not precluded in any way, from retaining all the legal representation that they can afford. It’s David vs Goliath, and tragically, we are all left to be David’s, without the mythical ending.

Thank whomever you thank everyday, that SOMEONE, is paying someone else, to make sure, that this result is not left to happen in every case.

Why must we constantly explain to some politicians the innate difference between a semi-automatic firearm and an automatic firearm? Do they still not understand the concept, or is it simply disingenuousness?

Interesting post, Patrick and I agree with much of it. I think though, that some tort reform can be accomplished without more government interference. Specifically, so far as I know, in civil suits, the loser pays court costs and for the legal representation of both parties in all of the other OECD countries. Since plaintiff lawyers here bear no risk of paying for anything except for some time and effort, lawsuits can be filed essentially on a whim. We have a double standard. The defendant pays his own costs at a minimum in a civil suit, even if he “wins”, but runs the risk of having to pay for both damages AND legal fees for the plaintiff. The plaintiff bears no such risk.

The general rule, in the U.S. Is that each party bears it’s own costs, including attorneys fees, of litigation. There are many exceptions, but this remains the general rule and there is good reason for the rule; the system is set up to allow parties, with claims, to prosecute those clams, and the belief is that IF, the “losing” party were, in all cases, required to pay the costs, and fees, of the “winning” side, many legitimate cases would never be litigated.

Imagine that you were the wronged party in an action against a large corporation, with an army of highly paid, and highly skilled attorneys arrayed against you. Now further imagine that, while “technically and legally” you were in the right, but the potential for you, in the event you “lost” was to face having to pay every dollar of legal fees and costs that the large company incurred to fight your case. You might press on, but most likely, in the real world, you wouldn’t, and even more likely, you wouldn’t be able to afford even your own lawyers fees, much less be able to afford, potentially, to pay the fees that the opposition would be incurring.

Of course, large corporations, and extremely wealthy individuals LOVE the thought that the laws would be changed to force little guys to have to pay their attorneys fees when they grind the little guys, with legitimate claims into the ground. They can’t lose.

“Frivolous” lawsuits are EXTREMELY rare, of course, you wouldn’t think that because vested interests spread the news of those rarities far and wide, so that they can get the kinds of laws passed that make it better for them, in the hopes that, not only don’t they have to defend frivolous actions, they don’t have to defend ANY actions against them.

“Despite popular opinion, statistics show that America doesn’t have a frivolous lawsuit problem. The Rand Institute for Civil Justice, one of the most respected think tanks in the nation, found that only 10 percent of injured people seek compensation and only 2 percent of them file lawsuits. The Rand Institute also found that since 1991, tort cases reflected only six percent of all cases filed. Other reports have shown that:
While populations have grown nationwide, personal injury lawsuits have decreased by 21 percent.
Personal injury lawsuits represent only 1.3 percent of all civil dispositions.
From 1992 to 2005, jury trials in personal injury cases have seen a 52 percent decrease.
A survey of judges in Texas, where tort reform support runs high, found that 86 percent of them felt there was no need for legislation to limit lawsuits.
The frivolous lawsuit myth is an invention of big business. Corporations and insurance companies, though selective and sometimes entirely false reports, have framed several legitimate lawsuits as frivolous and an abuse of our courts.

The best known, most ridiculously “trumpeted” example:

“The McDonald’s Hot Coffee Case
The most famous “frivolous lawsuit” of all time is the McDonald’s hot coffee case. The storyline spread by big businesses is that a woman spilled hot coffee on her lap while driving and had the nerve to sue McDonald’s for her own clumsiness. Of course coffee is hot, and it’s not McDonald’s fault if you spill it on yourself, argued tort reform advocates. The case also made news because of the size of her verdict, which was reported in the millions. What wasn’t reported, though, was that the entire story was false. First, the elderly woman suffered third-degree burns which required eight days of hospitalization and multiple skin grafts. Second, the coffee served to her was 50 degrees hotter than normal coffee – a complaint McDonald’s had received hundreds of times before and ignored. Finally, she only sued McDonald’s when her request for a $20,000 settlement to cover her out-of-pocket medical expenses was denied. She eventually recovered only $640,000 after the jury determined that she was 20 percent responsible for the injury.”

“The only “sue-happy” people in this country are banks and debt collectors.

According to the most recent data from the National Center for State Courts (NCSC), tort [i.e., personal injury] cases represent only 5% of all incoming civil cases today.[2] On the other hand, nearly 70% of civil caseloads are contract-based.[3] Why so many contract disputes? It is worth looking at Kansas, a state that has adopted statistical reporting which allows examination of its court data.[4] In Kansas, only 2% of incoming civil cases involved torts, yet a whopping 80% of incoming civil cases involved contract disputes.[5] Of that number, fully 75% of these were debt collection cases; 7% were mortgage foreclosures.[6]
According to an extensive study by the Rand Institute for Civil Justice, for the typical injury, “the injured person does not even consider the notion of seeking compensation from some other person or entity….”[7] Only 10 percent ever file a claim, which includes informal demands and insurance claims.[8] Only two percent file a lawsuit.[9] The study concludes that these statistics are at odds with any notion that we live in an overly litigious society.[10]”

In Kansas, 75% of cases involve big banks, credit card companies, and other large corporations suing to collect debt. This figure is consistent nationwide. Oppressive yes, frivolous? You tell me.

While it’s true that the risk of having to pay the other side’s court costs could prevent some people of little means from suing, it probably wouldn’t discourage those with good cases. Investors are always willing to front money if the risk is reasonable. A venture capital market for covering legal expenses in lawsuits would evolve.

With the present system of course, it’s the defendant that takes on the lion’s share of the risk, since the courts often make the plaintiff’s “reasonable” legal costs part of the judgement. This discourages many a defendant from trying to defend themselves. How often do you think that happens when a big company, say a hospital charging absurd amounts for their care, uses the courts to collect a debt? Gee, maybe that’s why there are so many lawsuits to collect debts as you have observed. Who’s going to pay to fight when the best they can hope for is a set of legal bills bigger than the bill they are being hounded to pay? Legal costs for the debt collectors though, are comparatively cheap, since I suspect big companies run large numbers through the system. How many cases do you think Visa runs through in a day? Advantage: Debt collectors.

Loser pays seems to work for every other OECD country. How can you be sure that our way is better?

Frivolous lawsuits are only rare because the courts refuse to call them frivolous. It’s only the frivolous judgements that make the news. I knew a rich guy once, and someone made him angry. He had his lawyer file suit. They went through almost two years of discovery, continuances and all kinds of other shenanigans. The day before the trial was to begin, the rich guy told his lawyer to withdraw the suit. He never had any intention of going to trial. He just decided to get revenge by costing the man of lesser means a lot of money and sleepless nights. I wonder how often that kind of thing happens.

I did some checking.
I would have liked to prove Mr. Sham Plea wrong again, but on this issue Patrick has hit the nail squarely on its head.
Everything I found was old and prior to laws enacted to prevent SLAPP suits like the one against John L Smith.
Frivolous lawsuits are a small minority, thanks to the ways they have been made hard to execute.

As I said Rincon, the general rule is that each side pays it’s own costs; defendants aren’t unduly prejudiced by this balanced approach. Defendants, under most circumstances, are no worse off than plaintiffs; they both generally pay their own attorneys fees.

But you are mistaken if you believe that a person that has been damaged will, generally, find the money necessary to sue and recover for those damages. Litigation, especially against large companies, who generally do the most harm, is an expensive proposition that the vast majority of the population just cannot afford, particularly when the oppositions ability to spend is seemingly unlimited (for the most part, large corporations are insured against such actions, and their costs are fixed because of the deductible that they must pay).

It would be a really, really, terrible day, for justice in this country, if parties were always forced to pay if they “lost”. (I put the word in quotation marks because “winning and losing” a case is not always as clear as you might think….according to the law anyway)

The real answer is to make the justice system cheaper to operate, so that legal costs would only represent a small fraction of the money involved. But each side generally may or may not pay their legal costs. If an award for damages is granted, does it not usually include the plaintiff’s legal fees?

You also never addressed my question regarding bill collecting. How does Visa legally ruin the credit rating of people who don’t pay? Either they are exempt from the requirement of having a court decision or they run through thousands of cases at a time. And what chance does someone have to protest a bill? Visa has very deep pockets.

The answer is “no”. A damage award, does not generally include an award for legal fees to either said. As I said, there are exceptions, written into particular statues (Anti-SLAPP being a prominent one, and even this was included specifically to protect “the little guy”)

And VISA, like all big companies, makes lots of mistakes, some intentional some negligent. But your point about the small chance an individual has against such large companies actually supports what I have been saying all along.

Even when VISA makes a mistake, because of their size, and ability to hire attorneys to prosecute cases, if an individual were forced to pay VISA legal fees, every time VISA won a case, few, if any, people would ever fight them, even if the individual were in the right.

May I ask how you found out that a damage award doesn’t include reimbursement for legal fees? That would mean that some people have half of their compensation for say, medical costs taken away for the legal fees? How fair is that? I suspect that, although the courts don’t allocate legal fees specifically, they likely make the award amount large enough to cover those costs.

In the case of Visa, they are the plaintiff. The defendant at present, never gets his costs reimbursed, so how can he defend himself? Even if he wins, he loses. On the other hand, if loser pays, then a defendant with a good case has the prospect of actually winning. If he loses, he pays more, but who’s to say that a 100% chance of paying half of the legal fees is better than say, a 10% chance of having to pay all of them? With odds like that, there are lots of investors that would kill for a piece of the action.

The reason why a “defendant” “loses” in most instances is as I said, the system is set up to encourage those with meritorious claims, to pursue those claims, and not to be threatened with a double loss in the event those meritorious claims do not prevail.

Thank you for educating me Patrick. Your link explains the apparent conflict in our views. It seems that while the general rule is that each side pays its own way, there are some major exceptions, including this one in Nevada: “Nevada Rule of Civil Procedure 68 is unique in that a party who declines a pretrial offer of judgment (essentially a settlement offer) and fails to obtain a better result at trial is liable for all reasonable attorney’s fees and costs incurred by the offeror after the time the offer was given.”

It’s a thorny problem, but I think we can agree that the legal costs of litigation are excessive. Reducing those costs would reduce the unfairness that comes for some cases no matter which rule holds sway.

I think almost everyone tries hard to settle their differences without litigation. That’s why many of us have never been in a lawsuit or maybe experience it once or twice in a lifetime. The real shame is that litigation often does as much or more harm than good.

4TH ST8

"Burke said there were Three Estates in Parliament; but, in the Reporters' Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or a witty saying; it is a literal fact ... Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority. It matters not what rank he has, what revenues or garnitures. the requisite thing is, that he have a tongue which others will listen to ... Democracy virtually extant will insist on becoming palpably extant."